Funds Not Property Of ERISA Plan Until Remitted To Plan

In Pantoja v. Zengel (12-11036), the Eleventh Circuit affirmed the trial court's judgment that the money at issue was not an asset of the ERISA plan where the money had never been given to the ERISA plan. The court held:

Upon examination of the Plan documents, we find no clear and specific language indicating the fringe benefits are “plan assets” before they are actually remitted to the Plan. Indeed, unlike the plan documents in ITPE Pension Fund, this contract is not even susceptible to such a reading. See 334 F.3d at 1016. Without clear language or any evidence indicating otherwise, we conclude that the unpaid funds cannot be construed as plan assets; therefore, the Appellees did not breach a fiduciary duty as a matter of law.

Florida's Medical Malpractice Limits Do Not Violate U.S. Constitution

In Estate of Michelle Evette McCall v. USA (09-16375), the Eleventh Circuit released a published opinion addressing the constitutionality of the limits in Florida on noneconomic medical malpractice damages. The Court held the limit on noneconomic damages is constitutional under the United States Constitution and the takings clause of the Florida Constitution but certified other issues to be determined by the Florida Supreme Court. The court stated:

The central question presented in this appeal is whether Florida’s cap on noneconomic medical malpractice damages, Fla. Stat. § 766.118, violates the Florida or United States Constitutions. The Estate of Michelle McCall, Ms. McCall’s parents, and the father of Ms. McCall’s son (collectively “Plaintiffs”) also appeal the District Court’s application of that statutory cap. After thorough review and having had the benefit of oral argument, we conclude that the District Court did not err in applying the cap. We also conclude that Florida’s statutory cap passes muster under the Equal Protection Clause of the Fourteenth Amendment and the Takings Clause of the Fifth Amendment of the United States Constitution as well as the Takings Clause of Article X, § 6(a) of the Florida Constitution. Because no Florida Supreme Court decisions provide controlling guidance to resolve Plaintiffs’ other challenges to this cap on noneconomic medical malpractice damages under that state’s Constitution, we grant, in part, Plaintiffs’ motion to certify questions to the Florida Supreme Court.

*****

We certify the following questions to the Supreme Court of Florida:

1. Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the right to equal protection under Article I, Section 2 of the Florida Constitution?
2.  Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the right of access to the courts under Article I, Section 21 of the Florida Constitution?
3. Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the right to trial by jury under Article I, Section 22 of the Florida Constitution?
4. Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the separation of powers guaranteed by Article II, Section 3 and Article V, Section 1 of the Florida Constitution?

VI.

We affirm the district court’s application of Florida’s statutory cap on noneconomic damages. We also conclude that the cap comports with the Equal Protection and Takings Clauses of the United States Constitution. We conclude that the statute does not constitute a taking in violation of the Takings Clause of the Florida Constitution, and we grant Plaintiff’s motion to certify questions regarding Plaintiffs’ remaining challenges to the cap under state constitutional law to the Florida Supreme Court.

*Disclaimer: GrayRobinson, P.A. was involved in the above-referenced action.

Case Can Be Procedurally Ready For Trial Years Before It Is Actually Ready For Trial

In Parkinson v. Kia Motors Corp. (5D10-3716), the Fifth District denied a petition for writ of mandamus that was seeking to force a circuit court judge to move forward with a trial. The court discussed the difference between a case being procedurally ready for trial pursuant to Rule 1.440, Florida Rules of Civil Procedure, and a case actually being ready for trial. When a case is procedurally ready for trial, the trial court must set it for trial when a party properly provides notice that the case is at issue. However, it is within the trial Court's discretion to determine when the case will actually be ready and, therefore, to determine the date it should be set. In this case:

Here, the trial court has not refused to set a trial date; rather, it offered to set a date in 2012, based on its conclusion that the case was complex and that many difficult and novel issues required resolution before a trial of such length could go forward. Although a delay approaching eighteen months to obtain a two-week civil trial in a circuit court in Central Florida is shocking, we have to recognize that under the new regime of ever-decreasing resources, this may be – or may become – the norm. A 2012 trial date may be unacceptable to Petitioner, but we are not in a position, at this stage, to micro-manage the scheduling of this trial. The timing of the trial is a matter left to the sound discretion of the trial court. We do not know what other matters are competing for the trial judge's attention and how much support he has. Accordingly, we deny the petition for writ of mandamus, but admonish the trial court that it is obliged to schedule a case for trial that is at issue and properly noticed, notwithstanding pending motions for summary judgment.

Order Requiring Production Of Software Source Code Quashed

In Revello Medical Management, Inc. v. Med-Data Infotech USA, Inc. (2D10-534), the Second District granted a petition for certiorari and quashed a trial court order requiring the production of software source code.  The court described the facts as follows:

In simple terms, Med-Data claims that one of its former employees developed a software program to aid in medical insurance billing and that the employee took the program with him when he began working for Revello.  Revello is marketing a computer program that Med-Data claims is based on its trade secrets.  Med-Data sought to discover the computer source code used in Revello's program and, over Revello's objections that its program was a trade secret, the circuit court ordered it to produce the program to Med-Data's expert.  Revello seeks a writ of certiorari to quash the order.  

The court's analysis is copied, almost in its entirety, below:

In response to a defense discovery request for its computer source code, Med-Data stated: "[a]s to source codes, [Med-Data] declines to publish the exact nature of the trade secrets."  Under Florida's "at issue" doctrine, "[w]hen a party has filed a claim, based upon a matter ordinarily privileged, the proof of which will necessarily require that the privileged matter be offered in evidence," he waives his right to claim that the matter is privileged in pretrial discovery....Thus it is clear that Med-Data has neither identified with reasonable particularity the nature of its claimed trade secret nor established that it exists.  As such, it was not entitled to discover the computer source code used in Revello's program.

Still, Med-Data is entitled to some protection of its alleged trade secret in pretrial discovery.  Ordinarily such matters should be submitted to the circuit court to conduct an in-camera review.  But because the alleged trade secret is a computer program, the evidence of its existence likely will consist of computer source code.  We presume this from the fact that Med-Data is seeking to discover the computer source code of Revello's program in order to prove that Revello has misappropriated the alleged trade secret.  If the circuit judge does not have the requisite experience in examining such code, he may wish to appoint a neutral computer expert to review MedData's program.  If it is established that Med-Data indeed has a trade secret to protect, the court may revisit its discovery request for Revello's computer source code and Revello's objections to discovery and craft similar protection for Revello's alleged trade secret.

*Disclaimer: GrayRobinson, P.A. was involved in the above-referenced action.

Fourth District On Invited Error And Jurisdiction To Review Rehearing Orders

In Rodrigo v. JPMorgan Chase Bank, N.A. (4D10-1787), the Fourth District affirmed the trial court's decision in part and dismissed the appeal in part for lack of jurisdiction.  The court stated that "Appellant appeals a non-final order granting her motion to restore possession of her home but with the condition that she turn on the water and air conditioning to her unit."

First, the trial court's order was affirmed because "During the hearing on appellant’s motion to restore  possession of  property,  appellant’s counsel  agreed  to these conditions.  Having invited the alleged error, appellant cannot now be heard  to complain."  Therefore, the order was affirmed. 

The Appellant also sought review of an order on a motion for rehearing of the order, now affirmed, above.  The court stated: "A non-final order denying a motion for relief from a non-final order is not reviewable on appeal....Accordingly, we dismiss the appeal as to the order denying the motion for relief."

The opinion is below:
Rodrigo v. JPMorgan Chase Bank Nat. Ass'n., - So. 3d - (Fla. 4th DCA 2010)

*Disclaimer: Jeffrey Kuntz and/or GrayRobinson, P.A. were involved in the above-referenced action.

Final Judgment Of Garnishment Reversed

UPDATE: The court released a new opinion, HERE, on rehearing.  The new opinion reached the same conclusion and is published at the following cite: GrayRobinson, P.A. v. Fireline Restoration, Inc., 46 So. 3d 170 (Fla. 4th DCA 2010).

In GrayRobinson, P.A., et al v. Fireline Restoration, et al. (4D09-2102 & 4D09-2116), the Fourth District reversed a garnishment judgment against GrayRobinson and the Florida Insurance Guaranty Association and ordered that the writs of garnishment be dissolved.

After obtaining a judgment against Fireline, Works R Us had writs of garnishment issued against FIGA and GrayRobinson. Works R Us argued that money in GrayRobinson’s trust account belonged to FIGA and that it was going to be paid to Fireline. FIGA argued that it did not owe money to Fireline, however, the trial court disagreed and entered a judgment against both FIGA and GrayRobinson requiring that the money in the GrayRobinson trust account be turned over to Works R Us.

After a recitation of the underlying facts, the court noted that “Works R Us has no greater right than Fireline has to recover funds from FIGA or GrayRobinson.” the court stated:

The funds held by GrayRobinson have been paid in accordance with a court order in the Del Mar litigation with specific directions. Fireline and various creditors of Fireline, as well as Del Mar and FIGA itself, were allowed thirty days to file claims against those funds. Any claims filed beyond that time were deemed barred and waived. Any unclaimed funds would be returned to Del Mar. The record on summary judgment in this proceeding does not reveal whether Fireline filed a claim to the deposited funds. If it did not, then according to the judgment, its claim to them would be barred. In that case, owing no debt to Fireline, GrayRobinson would owe no monies to Works R Us.

The court referenced several orders from an unrelated litigation which can be viewed at the links below:

• Del Mar Ass'n, Inc. v. Fla. Ins. Guar. Ass'n, No. 2006-0175-CA-03, 2008 WL 5705147 (Fla. Cir. Ct. Dec. 26, 2008);
• Del Mar Ass'n, Inc. v. Fla. Ins. Guar. Ass'n, No. 2006-0175-CA-03, 2009 WL 6328786 (Fla. Cir. Ct. Feb. 24, 2009);
• Del Mar Ass'n, Inc. v. Fla. Ins. Guar. Ass'n, No. 2006-0175-CA-03, 2009 WL 6328788 (Fla. Cir. Ct. March 2, 2009); and
• Del Mar Ass'n, Inc. v. Fla. Ins. Guar. Ass'n, No. 2006-0175-CA-03, 2009 WL 6328787 (Fla. Cir. Ct. April 2, 2009).

You can read a press release relating to the named appellee Fireline issued by the United States Securities & Exchange Commission HERE and a related complaint filed by the SEC HERE.  News articles can be found at the following links:

• BB&T seizes Brian Marshall’s yacht, seeks Ferrari and Bentley;
• Fireline Restoration subcontractor debts sounding alarms; 
• SEC filings detail unraveling of Fireline Restoration’s parent company;
• Profiting From Disaster With Lies;
• Tampa exec Brian Marshall helped create 'fantasyland of fraud,' SEC says;
• Feds investigate disaster Restoration execs;
• Brian Marshall companies seek Chapter 11 bankruptcy protection; 

*Disclaimer: Jeffrey Kuntz and/or GrayRobinson, P.A. were involved in the above-referenced action.

Eleventh Circuit Affirms Summary Judgment Order In Favor Of Lender

In Azar v. National City Bank (09-16052), the Eleventh Circuit affirmed the district court's grant of summary judgment in favor of the lender.  The court stated:

Azar first argues that the district court erred in dismissing his claim of fraudulent inducement in count two. According to Azar, the district court ignored the misrepresentation of fact that he alleged in his complaint – namely, that Azar “qualified” for the loans and met underwriting standards for loan approval. Azar contends this misrepresentation of fact induced him to take the loans...

***

Here, the district court correctly found that Azar failed to plead a plausible claim of fraudulent inducement. Azar contends that, by approving his loans, National City misrepresented that he “qualified” for the loans and met underwriting standards. The mere fact that his loans were approved, however, does not constitute a false statement of fact. Otherwise, every loan approval could potentially result in a claim for fraudulent inducement. Likewise, Azar’s personal belief that the loan approvals meant the bank believed he could repay the loan does not constitute a misrepresentation of fact that was made by National City. Even if National City employees had told Azar that they believed he could repay the loan, such a statement is merely an opinion, which cannot support a cause of action for fraud.

***

The only false statement identified in count two of his complaint was National City’s falsification of Azar’s income on his loan applications. We agree with the district court that this misrepresentation, even if true, reflects an intent to induce the lender to grant the loan, not to entice Azar to take the loan. The only evidence of inducement in Azar’s complaint is his bare allegation that National City would financially benefit from loaning the money to him. Not only is this assertion devoid of any factual support, but it defies common sense to believe that a bank would profit from loaning money to someone it knows cannot repay it.

The remainder of the opinion, which can be viewed HERE, focused on waiver of arguments and attorneys fees.

*Disclaimer: GrayRobinson was involved in this appeal.

Governor Signs Legislation Which Includes Distressed Condominium Relief Act

Terence "Terry" J. Delahunty, Jr., Paul S. Quinn, Jr. and the GrayRobinson Real Estate team released the e-alert below:

Governor Signs Legislation Which Includes Distressed Condominium Relief Act

Insurer Can Challenge Coverage After Appraisal

In Florida Insurance Guaranty Association v. Olympus Association, Inc., - So. 3d -, 4D09-11, 2010 WL 1979242, 2010 Fla. App. LEXIS 6941 (Fla. 4th DCA May 19, 2010), the Fourth District reversed the trial court's order confirming an appraisal award and entry of a 5.5 million dollar judgment in favor of Olympus.  The court concluded that "As explained in Kennedy and supported by Fisher, FIGA could contest part of the liability without challenging coverage as a whole."  The court described the facts as follows:

Olympus’s public adjuster, Joseph Zevuloni, demanded an appraisal for Buildings 500, 600, and 2500...Tony Allogia was the appraiser for FIGA, and Michelle L. Antinucci was appointed as the Umpire. On May 30, 2008, the Umpire submitted an Appraisal of Insurance Claim—Award Form (Appraisal Award) to the appraisers. Zevuloni signed it on May 31, 2008, making the award valid and binding. The Appraisal Award totaled $7,102,879.76...There was also a separate sheet indicating the line-item appraisal amounts for each building, which in part indicated that of the total amount, $3,785,000 was allotted for Waterproofing/Painting.

[FIGA's] second Affirmative Defense stated that “[p]ursuant to the Policy, Form CP 01 25 06 95, painting or waterproofing material is not covered.” This policy provision, labeled “Windstorm Exterior Paint and Waterproofing Exclusion,” indicates that the policy does not cover loss or damage to paint or waterproofing material applied to the exterior of the buildings.

Olympus filed a Motion to Confirm Appraisal Award and Entry of Final Judgment. The trial court heard the motion, entered an Order granting it, and entered Final Judgment allowing Olympus to recover from FIGA the sum of $7,102,879.76 in principal, less $2,550,545.78 in building deductibles and a $100.00 FIGA deductible, for a total amount of $4,552,233.98.

With regard to the law, the court stated:

Appraisal clauses are preferred, as they provide a mechanism for prompt resolution of claims and discourage the filing of needless lawsuits. Issues relating to coverage challenges are questions exclusively for the  judiciary....In Liberty American Insurance Co. v. Kennedy, 890 So. 2d 539, 541 (Fla. 2d DCA 2005), the second district concluded that “the submission of the claim to appraisal does not foreclose Liberty American from challenging an element of loss as not being covered by the policy.”

***

Thus, the trial court erred by entering final judgment in favor of Olympus without first determining FIGA’s liability as to the coverage claims contested in its affirmative defenses. Although Licea made mention of challenging a “whole loss,” it is not reasonable to order an insurer to pay for all elements set forth by an appraiser if the insurer raises an issue of coverage as to only one element and not the whole claim. See Fisher v. Certain Interested Underwriters at Lloyds Subscribing to Contract No. 242/99, 930 So. 2d 756, 759 (Fla. 4th DCA 2006) (stating, with regard to construing a policy too narrowly, that “[t]o do so would require us to turn a blind eye to what common sense dictates”). It is the appraiser’s duty to determine the amount of coverage, while questions of coverage liability are left for the judiciary. Licea, 685 So. 2d at 1287. Then, “[i]f a court decides that coverage exists, the dollar value agreed upon by the appraisal process will be binding upon both parties.” Id. at 1287–88. 

Our holding in Fisher v. Certain Interested Underwriters at Lloyds Subscribing to Contract No. 242/99, 930 So. 2d 756, 759–60 (Fla. 4th DCA 2006), further supports FIGA’s contention that the trial court erred in not permitting it to contest one element of the coverage.

***

Based on the above, we conclude that the trial court erred by entering final judgment in favor of Olympus and awarding it the amount set forth in the appraisal (less the deductibles), without first deciding the issue of coverage liability. When FIGA filed its affirmative defenses in response to Olympus’s complaint, the trial court should have first decided FIGA’s liability. As explained in Kennedy and supported by Fisher, FIGA could contest part of the liability without challenging coverage as a whole.

The entire opinion is below:

Fla. Ins. Guar. Ass'n, Inc. v. Olympus Association, Inc., - So. 3d -, 4D09-11, 2010 WL 1979242 (Fla. 4th DC...

The briefs can be viewed at the following links: Initial Brief; Answer Brief; and Reply Brief.

*Disclaimer: Jeffrey Kuntz and/or GrayRobinson, P.A. were involved in the above-referenced action.

“Usual and Customary Provider Charges”

In Baker County Medical Services v. Aetna Health Management, LLC (1D08-0067), the First District addressed the following issues:

Baker County Medical Services, Inc. (BCMS), appeals a final judgment interpreting section 641.513(5)(b), Florida Statutes (2006). BCMS raises two issues on appeal. First, BCMS argues that the trial court erred in ruling that the term “provider” in section 641.513(5)(b) is not limited to any specific type of provider. We disagree and affirm on the first issue. Second, BCMS argues that the trial court erred in ruling that the phrase “usual and customary provider charges” in section 641.513(5)(b) includes consideration of the amounts billed by providers, as well as the amounts accepted by providers as payment. We agree in part and reverse with directions on the second issue.

The court held that the amount to be paid by an HMO to an emergency facility it does not have an agreement with should be determined by the fair market value and not based upon the amount charged.  The court stated:

BCMS asserts that the “usual and customary charges” include only the amounts billed or the charge master rates. The term “charges” is not defined in section 641.513(5). When a statute does not define a term, we rely on the dictionary to determine the definition. See Green v. State, 604 So. 2d 471, 473 (Fla. 1992). “Charge” is defined as a “[p]rice, cost, or expense.” BLACK’S LAW DICTIONARY 248 (8th ed. 2004). In paragraph (5)(a), the term “charge” is modified by the terms “usual” and “customary.” “Usual” is defined as “[o]rdinary; customary” and “[e]xpected based on previous experience.” Id. at 1579. “Customary” is defined as “[a] record of all of the established legal and quasi-legal practices in a community.” Id. at 413. In the context of the statute, it is clear what is called for is the fair market value of the services provided. Fair market value is the price that a willing buyer will pay and a willing seller will accept in an arm's-length transaction. See United States v. Cartwright, 411 U.S. 546, 551 (1973).

The oral argument that took place in the case on January 20, 2009 is below:

*Disclaimer: GrayRobinson, P.A. was involved in this action.

Article About Derespina v. North Broward Hosp. Dist., 19 So. 3d 1128 (Fla. 4th DCA 2009)

Derespina v. North Broward Hosp. Dist., 19 So. 3d 1128 (Fla. 4th DCA 2009), discussed in a prior post HERE, was referenced in the article below:

And the Defense Wins - Feb. 10, 2010 (Derespina)

Decision Relating To Parental Relocation Of Child Entails A Best Interest Determination At Time Of Hearing - Florida Supreme Court

In Arthur v. Arthur (SC08-1675), the Florida Supreme Court quahsed a decision of the Second District relating to parental relocation of a child and section 61.13001, Florida Statutes (2006). 

Upon review of the Husband's arguments and the well-reasoned analyses in the First District's opinions in Martinez, Janousek, and Sylvester, we conclude that a best interests determination in petitions for relocation must be made at the time of the final hearing and must be supported by competent, substantial evidence. In this case, the trial court authorized the relocation based in part on its conclusion that relocation would be in the best interests of the child twenty months from the date of the hearing. Such a “prospective-based” analysis is unsound. Indeed, a trial court is not equipped with a “crystal ball” that enables it to prophetically determine whether future relocation is in the best interests of a child. Any one of the various factors outlined in section 61.13001(7) that the trial court is required to consider, such as the financial stability of a parent or the suitability of the new location for the child, could change within the extended time period given by the court before relocation. Because trial courts are unable to predict whether a change in any of the statutory factors will occur, the proper review of a petition for relocation entails a best interests determination at the time of the final hearing, i.e. a “present-based” analysis.

*Disclaimer: GrayRobinson, P.A. was involved in this action.

Florida Supreme Court Accepts Jurisdiction Over Standard For Motion For New Trial

The Florida Supreme Court accepted jurisdiction in Companioni v. City of Tampa (SC09-1800).  The Second District's opinion under review was discussed HERE.  The Petitioner's Brief on Jurisdiction can be found HERE and the Respondent's Brief on Jurisdiction can be found HERE.  The decision under review stated:

Although a party whose objection is sustained must move for a mistrial in order to preserve the issue for appellate review, a motion for mistrial is not a prerequisite to moving for a new trial...As explained in Nigro, a trial court generally has broad discretion to setaside a jury verdict and grant a new trial. Id. When counsel's misconduct deprives a party of a fair trial and that conduct has been objected to, the trial court may order a new trial even though there was no motion for a mistrial and the error was not fundamental.

***

Here, the trial court erroneously concluded that the City had not preserved its objections to opposing counsel's misconduct. Consequently, it applied the wrong standard when it evaluated the City's motion for a new trial. Under the correct standard, the trial court would not need to consider whether counsel’s conduct was so egregious that failure to grant a new trial would undermine the public's confidence in the justice system. Rather, it only needed to consider whether opposing counsel's misconduct deprived the City of a fair trial. Having found that it did, the trial court should have granted the City's motion. Accordingly, we reverse and remand for a new trial.

*Disclaimer: GrayRobinson, P.A. is involved in the above-referenced action.

Motion To Dismiss A Trademark Infringement Action Denied

In RGS Labs International, Inc. v. The Sherwin-Williams Company, Et Al, No. 09-14242-CIV, 2010 WL 317778 (S.D. Fla. Jan. 11, 2010) the court denied a motion to dismiss.  The court held that the plaintiff, in a trademark infringement case, had properly pled a cause of action. 

*Disclaimer: Jeffrey Kuntz and/or GrayRobinson, P.A. were involved in the above-referenced action.

"TOUSA bidding process, breakup fee approved" - Starwood's $61 Million Dollar Stalking Horse Bid Moves Forward

Paul Brinkman published an article today titled "TOUSA bidding process, breakup fee approved" which can be found at both msn.com and The South Florida Business Journal.  Discussed is a hearing today during which Southern District of Florida Bankruptcy Judge John Olson allowed Starwood Land Ventures's $61 million dollar stalking horse bid to go forward with a $1.8 million dollar breakup fee to Starwood if the bid is not successful.  The article states:

Starwood’s attorney, Ivan Reich of Gray Robinson, said the company has already spent $900,000 evaluating the purchase since June.  “This is a substantial purchase in a market that is basically not moving, as your honor knows,” Reich said.

*Disclaimer: GrayRobinson is involved in this action.

GrayRobinson, P.A.'s Grier Wells Wins Reelection to the Florida Bar Board of Governors

The following was released by GrayRobinson at THIS link:

Wells Wins Reelection to the Florida Bar Board of Directors

S. Grier Wells, a shareholder at GrayRobinson, P.A., has won reelection to the Board of Governors of The Florida Bar - a position that he has held since 2002. Wells ran unopposed and will represent the Fourth Judicial Circuit for another two-year term.

"I am very pleased to continue my service to The Florida Bar as part of the Board of Governors," said Wells. "I have been an active member of The Board for more than eight years and am excited to help mold the direction of The Bar another two years."

Wells has held several other leadership positions in addition to the one he holds on The Florida Bar. He is a charter member and former President of the Jacksonville Chapter of the American Board of Trial Advocates and previously served as the President of the Jacksonville Bar Association. Professionally, he practices in GrayRobinson's Jacksonville office and concentrates in the areas of Alternative Dispute Resolution, Commercial Litigation, Construction Litigation, Employment Litigation and Insurance Defense.

Wells attained both his undergraduate and law degrees from the University of Florida.

###

Order Denying Motion to Compel Appraisal Of Hurricane Damage Affirmed

In Fla. Ins. Guar. Ass'n, Inc. v. Shadow Wood Condominium Ass'n, - So. 3d -, 4D09-378, 2009 WL 4283083 (Fla. 4th DCA Dec 02, 2009), the Fourth District affirmed an order denying a motion to compel appraisal.

*Disclaimer: Jeffrey Kuntz and/or GrayRobinson, P.A. were involved in the above-referenced action.

Order Denying Motion to Compel Appraisal Affirmed

In Fla. Ins Guar. Ass'n, Inc. v. Devon Neighborhood Ass'n, Inc., - So. 3d -, 4D09-378, 2009 WL 4283084 (Fla. 4th DCA Dec 02, 2009), the Fourth District affirmed an order denying a motion to compel appraisal. The briefs filed in the Fourth District can be viewed at the following links: Initial Brief; Answer Brief; Reply Brief.

UPDATE: The Florida Supreme Court entered an order accepting jurisdiction to review this decision.  The docket can be viewed HERE.  That decision can be viewed at the following link: 2010 WL 3737637, 43 So. 3d 44 (Fla. Sep. 22, 2010). The briefs filed in the Florida Supreme Court are linked below:

• Jurisdictional Initial Brief - filed 03/12/10
• Jurisdictional Answer Brief - filed 04/06/10
• Initial Brief;
• Answer Brief; and
• Reply Brief.

*Disclaimer: Jeffrey Kuntz and/or GrayRobinson, P.A. were involved in the above-referenced action.

Third District Reverses Order That Quashed Service of Process

In Sun Trust Bank v. Electronic Wireless and Fabian Pesantes (3D09-1952), the Third District reversed the trial court's order quashing service of process.  The Court's six page opinion, writted by Judge Rothenberg, began:

SunTrust Bank seeks reversal of a non-final order quashing service of process on Electronic Wireless Corp. and Fabian Pesantes, contending that they “concocted a hodgepodge of both actual and fictional requirements” for service of process and that “SunTrust duly complied” with each of the actual requirements. We agree and reverse and remand for proceedings consistent with this opinion.

The opinion is below:

Suntrust Bank v. Electronic Wireless, Et Al (3d09-1952) - Opinion

The briefs and oral argument in this case can be viewed below.

BRIEFS

*Appellees Motion to Dismiss Appeal

*Appellant's Response in Opposition to Motion to Dismiss Appeal

*Order Denying Motion to Dismiss Appeal

*Appellant's Initial Brief

*Appellees' Answer Brief

*Appellant's Reply Brief

* Appendix to Appellant's Initial Brief on Appeal

ORAL ARGUMENT

Part I:


Part II:

*Disclaimer: Jeffrey Kuntz and/or GrayRobinson, P.A. were involved in the above-referenced action.

GrayRobinson, P.A. -- "Family Medical Leave Act Extends to Cover Military"

GrayRobinson, P.A. released THIS press release:

Employment and Labor Newsletter -- Family Medical Leave Act Extends to Cover Military

November 19, 2009

On October 28, 2009, President Obama signed into law a Defense Department Fiscal Year 2010 Authorization Bill that expands the Family and Medical Leave Act (FMLA) requirements with respect to "qualifying exigency leave" for family and military members and "military caregiver leave." With regard to "qualifying exigency leave," the former law included only family members of Reservists and National Guard. That law has now been expanded to include any member of the Armed Forces who is either serving in a foreign country on active duty or is called to service in a foreign country. With regard to the "leave to care for wounded service members," the former law only included current members of the Armed Forces, National Guard and Reserves and that law is now being expanded to include any veteran who has served in the active military within the last five years.

The following is a policy which reflects the changes of the military leave requirements of the FMLA, and we suggest that you incorporate these changes into your current FMLA policy:

FAMILY LEAVE FOR MEMBERS OF THE ARMED SERVICES

Families of Reservists, members of the Armed Forces, National Guard or veterans who have left service within the last five years are entitled to 26 weeks of FMLA leave during a single 12 month period to care for a family member who became sick or injured while serving in the military. Families are defined as spouse, parents, children, as well as nearest blood relative.

Employees may also be eligible for qualifying exigency leave. Immediate family members (spouse, parents and children) of members of the Reserves, National Guard, or Armed Forces who are either serving in a foreign country or who are called to active duty in support of a military operation or during an national emergency, are entitled to 12 weeks of unpaid FMLA leave to handle affairs, such as arranging for child care and school activities, financial and legal arrangements, counseling, rest and recuperation, and post-employment activities. Qualifying exigency leave counts against an employee's 12 weeks or 12 month allotment of FMLA leave.

Please contact us for more information on this topic.

Sincerely,

William H. Andrews

On behalf of the GrayRobinson Employment and Labor Law Team